We continue to believe that when SCO paid more than $100m dollars for the Unix technology to Novell in 1995, we purchased everything, wrote Darl McBride in a letter to SCO’s partners and customers.

Last week a US District Judge ruled that Novell retained the Unix copyrights in the 1995 transaction with SCO’s predecessor, striking at the heart of SCO’s Linux-related contract and copyright infringement case against IBM.

SCO has not yet said whether it will appeal against the Judge’s decision, but McBride maintained in his letter that the company disagrees with his findings, pointing to the legal wording of the 1995 agreement.

We believe that ‘All rights and ownership of Unix and UnixWare, including but not limited to all versions of Unix and UnixWare and all copies of Unix and UnixWare (including revisions and updates in process), and all technical, design, development, installation, operation and maintenance information concerning Unix and UnixWare, including source code, source documentation, source listings…’ means just what it says, but the court did not agree.

The passage quoted by McBride is from Schedule 1.1(a) of the original Asset Purchase Agreement through which Santa Cruz Operation acquired the Unix business of Novell (Santa Cruz later sold it to Caldera, which changed its name to SCO Group).

Unfortunately for SCO, Judge Dale Kimball last week maintained that Schedule 1.1(a) has to be read alongside Schedule 1.1(b), which details a list of assets not included in the purchase agreement.

A review of Schedule 1.1(a) listing transferred assets and Schedule 1.1(b) listing Excluded Assets demonstrates that the transferred assets did not include Unix and UnixWare copyrights, wrote Kimball.

The only ‘intellectual property’ listed in the Schedule 1.1(a) list of assets to be transferred are the Unix and UnixWare trademarks. Schedule 1.1(a) did not identify Unix or UnixWare copyrights as an asset to be transferred, he added.

Conversely, the Schedule 1.1(b) list of ‘Excluded Assets’ expressly excluded from the transferred assets [a]ll copyrights and trademarks, except for the trademarks Unix and UnixWare’. Thus, the language of the APA and Amendment No 1 at the time of the bill of sale is clear: all copyrights were excluded from the transfer, he concluded.